Sha'Kayla ST. MARY, Appellant,
Veronica Lynn DAMON, Respondent.
[Copyrighted Material Omitted]
Accelerated Law Group and Joseph Timothy Nold, Las Vegas, for Appellant.
Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, and Bradley S. Schrager, Las Vegas, for Respondent.
Before the Court En Banc.
This appeal concerns the establishment of custodial rights over a minor child born to former female partners, appellant Sha'Kayla St. Mary and respondent Veronica Lynn Damon. The couple became romantically involved and decided to have a child. They drafted a co-parenting agreement, and eventually, St. Mary gave birth to a child through in vitro fertilization, using Damon's egg and an anonymous donor's sperm. Thereafter, their relationship ended, leading to the underlying dispute concerning the parties' custodial rights over the child.
The district court, apparently relying on a previous order that recognized Damon as the child's legal mother and granted her the right to be added as a mother to the child's birth certificate, concluded that St. Mary was a mere surrogate. The district court refused to uphold the parties' co-parenting agreement or consider whether St. Mary was a parent entitled to any custodial rights. St. Mary appealed, challenging the district court's conclusion that she was a surrogate and its refusal to uphold the co-parenting agreement.
We first conclude that the district court erred in determining, without holding an evidentiary hearing on the issue, that St. Mary was a surrogate lacking any legal rights to parent the child. The version of NRS 126.041(1) that existed at the time of the district court's determinations, as well as the version that exists now, provides that a mother-child relationship may be established by " proof of [the mother] having given birth."  See NRS 126.041(1) (2009); 2013 Nev. Stat., ch. 213, § 34, at 812. Here, the parties agree that St. Mary gave birth to the child but disagree about whether they intended for St. Mary to be a mother to the child or a mere surrogate. Nothing in either Nevada law or in this case's record, including the birth certificate order, conclusively demonstrates that NRS 126.041(1) does not apply to St. Mary's relationship with the child. Accordingly, a factual issue exists regarding whether St. Mary was a legal mother to the child or was a surrogate or gestational carrier without legal rights to the child, and we remand this matter for an evidentiary hearing on that issue.
Second, we conclude that St. Mary and Damon's co-parenting agreement is not void as unlawful or against public policy. When two parents, presumptively acting in the child's best interest, reach an agreement concerning post-separation custody, that agreement must not be deemed unenforceable on the basis of the parents being of the same sex. In this matter, the parties' co-parenting agreement stated that if their relationship ended, they would continue to share in the responsibilities and privileges of being the child's parent. Thus, if the district court determines on remand that both St. Mary and Damon are the child's legal parents, the district court should consider the co-parenting agreement and its enforceability in determining custody.
FACTS AND PROCEDURAL HISTORY
Approximately one year after entering into a romantic relationship with each other, St. Mary and Damon moved in together. They planned to have a child, deciding that Damon
would have her egg fertilized by a sperm donor, and St. Mary would carry the fertilized egg and give birth to the child. In October 2007, Damon's eggs were implanted into St. Mary. Around the same time, Damon drafted a co-parenting agreement, which she and St. Mary signed. The agreement indicated that Damon and St. Mary sought to " jointly and equally share parental responsibility, with both of [them] providing support and guidance." In it, they stated that they would " make every effort to jointly share the responsibilities of raising [their] child," including paying for expenses and making major child-related decisions. The agreement provided that if their relationship ended, they would each work to ensure that the other maintained a close relationship with the child, share the duties of raising the child, and make a " good-faith effort to jointly make all major decisions affecting" the child.
St. Mary gave birth to a child in June 2008. The hospital birth confirmation report and certificate of live birth listed only St. Mary as the child's mother. The child was given both parties' last names, however, in the hyphenated form of St. Mary-Damon.
For several months, St. Mary primarily stayed home caring for the child during the day while Damon worked. But, nearly one year after the child's birth, their romantic relationship ended, St. Mary moved out of the home, and St. Mary and Damon disagreed about how to share their time with the child. St. Mary signed an affidavit declaring that Damon was the biological mother of the child, and in 2009, Damon filed an ex parte petition with the district court to establish maternity, seeking to have the child's birth certificate amended to add Damon as a mother. The district court issued an order stating that St. Mary gave birth to the child and that Damon " is the biological and legal mother of said child." The 2009 order also directed that the birth certificate be amended to add Damon's name as a mother.
Thereafter, St. Mary instituted the underlying case by filing a complaint and motion, in a separate district court case, to establish custody, visitation, and child support. In response, Damon contended that, due to her biological connection, she was entitled to sole ...